Have an Illegal Reentry? How to get it vacated so you don’t have to go to prison

Question: I had a deportation order years ago. I re-entered the U.S. illegally, got caught and was convicted in U.S. District Court for illegal reentry. I am serving a three year sentence. Is there anything that I can do?

Answer: Actually, there was a great case that just came out of the Ninth Circuit Court of Appeal.The panel vacated a conviction and sentence for illegal reentry after deportation or removal in violation of 18 U.S.C. § 1326 and remanded for the district court to consider whether the defendant was prejudiced by the deprivation of his due process rights in his removal proceeding.

The panel held that the IJ erred when she failed to advise the defendant of the possibility of relief under 8 U.S.C. § 1182(c). The panel explained that § 440(d) of the Antiterrorism and Effective Death Penalty Act was not effective as to proceedings, such as the defendant’s, that had commenced prior to the date of the Act’s enactment.

In addition, the provision of IIRIRA that eliminated relief under § 1182(c) did not apply to aliens, like the defendant, whose proceedings had commenced before the enactment of IIRIRA. The panel vacated the defendant’s conviction and sentence and remanded for the district court to consider whether he was prejudiced by the deprivation of his due process rights in his 1999 removal proceeding. The panel stated that if the defendant was not prejudiced, then the district court could reinstate his conviction and sentence. If the defendant was prejudiced, then the district court must dismiss the indictment.

Question: Does this mean that I might be able to get out of prison?

Answer: Yes, it would be possible if the proper motions were made to show that your illegal reentry conviction should be vacated due to your due process rights being violated at immigration Court.

Question: I am not the best person in the world and have had some crimes.

Answer: Not to worry. If your due process rights were violated, then regardless of the crimes, your conviction should be vacated. For example, in this 9th Circuit case just entered, that defendant was actually no model citizen either. His name was Guzman. Guzman was born in Mexico, but came to the United States in 1979, when he was about six years old. He became a Legal Permanent Resident (“LPR”) on July 13, 1989. He was far from being a perfect peregrine; rather, he committed numerous crimes and on December 21, 1995, a deportation proceeding was initiated against him. Undeterred, he committed a robbery in California, was convicted of first degree robbery1 on February 14, 1997, and was sentenced to four years’ imprisonment as a result. Because state criminal proceedings necessitated a delay in the deportation proceeding, it was administratively closed in 1997. Guzman served his term, and the deportation proceeding was reopened. On August 12, 1999, the robbery conviction was added to the charges supporting his deportation. On August 25, 1999, the immigration judge (IJ) found that he was deportable as an alien convicted of an aggravated felony (8 U.S.C. § 1227(a)(2)(A)(iii)) and a firearm offense (8 U.S.C. § 1227(a)(2)(C)), and that he was ineligible for discretionary relief based upon his robbery conviction. Guzman waived his right to appeal. He was deported. He then entered illegally three times and ultimately the illegal reentry was set aside.
Thus, it is certainly possible, but you need to have your case properly analyzed – especially the original deportation proceeding to see if there is any possibility of due process violations.

n a precedent decision, the Board of Immigration Appeals (BIA) held that the beneficiary of a visa petition who was adopted pursuant to a state court order that was entered when the beneficiary was more than 16 years old, but with an effective date prior to his or her 16th birthday, may qualify as an adopted child under INA §101(b)(1)(E)(i), so long as the adoption petition was filed before the beneficiary’s 16th birthday, and the state in which the adoption was entered expressly permits an adoption decree to be dated retroactively.

The Ninth Circuit vacated the defendant’s conviction for illegal reentry, holding that the defendant’s due process rights were violated when the Immigration Judge (IJ) failed to advise the defendant during his 1999 removal proceeding about the availability of potential discretionary relief under INA §212(c). The court remanded for consideration of whether the defendant was prejudiced by the deprivation of his due process rights.

Following a new order by U.S. District Court Judge Andrew Hanen in the Texas v. United States litigation, USCIS advised DACA recipients who received a three-year Employment Authorization Document (EAD) that the three-year EAD and DACA approval notice are no longer valid, and reminded recipients to return three-year EADs previously issued to them. The new July 7, 2015, order requires top immigration enforcement officials, including DHS Secretary Jeh Johnson, to appear at a hearing in Texas on August 19, 2015, to discuss the 2,000 three-year EADs that were issued following the injunction on expanded DACA and DAPA

National Journal reports that, just months after acquiring the rights to broadcast the Miss Universe pageant in Spanish, Univision announced on Thursday that it would end its relationship with the pageant organization, which is owned in part by 2016 Republican presidential candidate Donald Trump. According to the article, Univision is cutting ties with Mr. Trump due to inflammatory comments he made against Mexican immigrants during his June 16 candidacy announcement.

The Seventh Circuit granted the petition for review and remanded, holding that the Board of Immigration Appeals (BIA) erred when it demanded that the petitioner provide more proof than necessary to satisfy a preponderance of the evidence standard for a discretionary good faith marriage waiver, available to petitioners who can show they entered a failed marriage in good faith, where the petitioner testified that he had married for love, not immigration benefits, and the government submitted no evidence.

The Department of Homeland Security (DHS) issued a notice that Nepal has been designated for Temporary Protected Status (TPS) for a period of 18 months, effective today, June 24, 2015, through December 24, 2016. This designation allows eligible Nepalese nationals (and immigrants having no nationality who last habitually resided in Nepal) who have continuously resided and have been continuously physically present in the United States since June 24, 2015, to be granted TPS. The 180-day registration period ends on December 21, 2015.